STATE OF RAJASTHAN & Ors. v. M/s LAL MANDIR TALKIES & Anr.

Plaintiff/respondent filed a suit for declaration and permanent injunction in the trial Court against defendants/appellants with a prayer that it be declared that plaintiff's Cinema Hall is not situated within the municipal limit of Gangapurcity and for consequential relief. The suit was contested by defendants, the trial Court framed six issues, both the parties led their oral and documentary evidence and the trial Court, after considering the entire evidence available on record, decreed the suit and declared that plaintiff's Cinema Hall is not situated within the municipal limit of Gangapurcity and granted consequential [2] SB CIVIL SECOND APPEAL 273/2011 relief. The judgment and decree passed by the trial Court has been affirmed by the First Appellate Court while dismissing regular appeal of defendants. Hence, defendants have preferred this second appeal.

I have considered the submissions of the learned counsel for appellants and examined the impugned judgments passed by both the Courts below and I find that no substantial question of law is involved in this second appeal.

The question involved in the present case whether plaintiff's Cinema Hall is situated within the municipal limit of Gangapurcity, is purely a question of fact and there is concurrent finding of facts by both the Courts below, which cannot be interferred with by this Court in second appeal under Section 100 CPC.

A three-Judges-Bench of the Hon'ble Supreme Court in Bholaram vs. Ameerchand- (1981) 2 SCC 414, considered the effect of amendment made in Section 100 of the CPC in 1976, and held as under:

......The High Court, however, seems to have justified its interference in second appeal mainly on the ground that the judgments of the courts below [3] SB CIVIL SECOND APPEAL 273/2011 were perverse and were given in utter disregard of the important materials on the record particularly misconstruction of the rent note. Even if we accept the main reason given by the High Court the utmost that could be said was that the findings of fact by the courts below were wrong or grossly inexcusable but that by itself would not entitle the High Court to interfere in the absence of a clear error of law.

The Hon'ble Supreme Court, in Ramaswamy Kalingaryar Vs. Mathayan Padayachi- AIR 1992 SC 115, while considering the scope of Section 100 CPC, held as under:

......Suggested shortcomings in the findings of fact recorded by the Courts below would not alter the situation that those were findings of facts, unquestionable, under the provisions of S.100, C.P.C., which defines the contours of the power of the High Court in second appeal. .....

The Hon'ble Supreme Court in Gurdev Kaur & Others Vs. Kaki & Others-(2007) 1 SCC 546, considered the true import, scope and ambit of Section 100 CPC by referring the Section 100 CPC, before and after amendment of 1976, various declarations of law by Privy Council and Supreme Court, Legislative background in the 54th Report of the Law Commission of India submitted in 1973, Historical perspective, Rational behind [4] SB CIVIL SECOND APPEAL 273/2011 permitting second appeal on substantial question of law, and held as under: Despite “81. repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 CPC in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 CPC. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates legislative intention.

82. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.”

Hon'ble Supreme Court in Dinesh Kumar Vs. Yusuf Ali, reported in (2010) 12 SCC 740 held that a second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. The High Court should not entertain a second appeal unless it raises a substantial question of law. It is obligation on the [5] SB CIVIL SECOND APPEAL 273/2011 court of law to further the clear intendment of the legislature and not to frustrate it by ignoring the same.

No substantial question of law is involved in this second appeal and the same is, accordingly, dismissed in limine. (NARENDRA KUMAR JAIN),J. /KKC/ [6] SB CIVIL SECOND APPEAL 273/2011 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER S.B.CIVIL MISC. STAY APPLICATION NO.1318/2011 IN S.B. CIVIL SECOND APPEAL NO.273/2011 STATE OF RAJASTHAN & ORS. Vs. M/s LAL MANDIR TALKIES & ANR. DATE: 19.05.2011 HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Brij Sharma on behalf of Mr. R.B. Mathur, for the appellants. **** Since the main appeal itself has been dismissed, therefore, this stay application does not survive and the same also stands dismissed. (NARENDRA KUMAR JAIN),J. /KKC/